A J D Bamford for Appellant B D Tantrum and G E Hughes for Respondent
Judgment:
14 May 2015 at 11:00 am
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe appeal against sentence in respect of the offence of assault with intent to injure is allowed.
CThe sentence imposed by the District Court for the offence of assault with intent to injure is set aside.
DThe appeal against sentence in respect of the offence of driving whilst disqualified (third or subsequent offence) is dismissed.
EA sentence of 13 months’ imprisonment for the offence of assault with intent to injure is imposed. This sentence is to be served cumulatively with the sentence of three months’ imprisonment for the offence of driving whilst disqualified (third or subsequent offence). The total end sentence for all offending is 16 months’ imprisonment.
On 17 June 2014 the appellant, Mr Tamihana, pleaded guilty to one charge of assault with intent to injure, under s 193 of the Crimes Act 1961. He was sentenced to 22 months’ imprisonment by Judge Zohrab in the Nelson District Court on 29 September 2014.[1] At the same time, he was sentenced to three months’ imprisonment for driving while disqualified (third or subsequent offence) contrary to s 32(4) of the Land Transport Act 1998. Judge Zohrab directed that both sentences should be served on a cumulative basis, resulting in an end sentence of 25 months’ imprisonment.
[1]R v Tamihana DC Nelson CRI-2013-042-2476, 29 September 2014.
Mr Tamihana appeals on the ground that the sentence imposed is manifestly excessive.
The appeal was brought out of time. Mr Tamihana sought an extension of time to appeal the sentence imposed. His previous counsel became unavailable and he had to instruct new counsel. The application was not opposed by the Crown and we grant it accordingly.
Factual background
Mr Tamihana and an associate, a Mr Guerin, were outside a bar in Nelson in the early hours of the morning of 24 October 2013. Mr Guerin became involved in an argument with the victim. He punched the victim in the face with a closed fist. The victim fell to the ground. Mr Guerin kicked him while he was on the ground. Mr Tamihana then ran up to the victim and kicked him once in the head. As a result of the assault, the victim suffered bruising and grazes to his face.
Mr Tamihana was spoken to by the police. He told the police that the victim had got what he deserved.
Following their first and second appearances, both Mr Guerin and Mr Tamihana asked for sentence indications.
Mr Guerin was given a sentence indication by Judge Zohrab on 13 January 2014. The Judge noted that Mr Guerin…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Tamihana v R [2015] NZCA 169
Case
[2015] NZCA 169
Decision Date
CaseChat Overview and Summary
In the Court of Appeal of New Zealand, the appellant, Aaron Stephen Tamihana, appealed against his sentence imposed by the Nelson District Court for the offences of assault with intent to injure and driving whilst disqualified (third or subsequent offence). The appeal was brought out of time, but an extension of time was granted. The appellant argued that the sentence imposed for the assault with intent to injure was manifestly excessive. The Crown argued that the sentence was not manifestly excessive, having regard to the totality of the offending.
The Court of Appeal found that the starting point of 18 months’ imprisonment adopted by the District Court was too high and that the uplift of six months for prior offending was excessive and wrong in principle. The Court considered that the offending was comparable to band two in R v Nuku and that the starting point for Mr Tamihana was too high when considering sentences imposed for similar offending. The Court also found that the uplift of six months was disproportionate. A reasonably minded independent observer would think that something had gone wrong with the administration of justice. The Court imposed a sentence of 13 months’ imprisonment for the offence of assault with intent to injure, uplifted by three months for previous convictions, and discounted by two months for the guilty plea. The sentence imposed for the driving offence was upheld, and the total end sentence for all offending was 16 months’ imprisonment.
The application for an extension of time to appeal was granted. The appeal against sentence in respect of the offence of assault with intent to injure was allowed, and the sentence of 22 months’ imprisonment imposed by the District Court was set aside. The appeal against sentence in respect of the offence of driving whilst disqualified (third or subsequent offence) was dismissed. A sentence of 13 months’ imprisonment for the offence of assault with intent to injure was imposed, to be served cumulatively with the sentence of three months’ imprisonment for the offence of driving whilst disqualified (third or subsequent offence). The total end sentence for all offending was 16 months’ imprisonment.